Judicial Watch filed an amicus brief in the Supreme Court case Alberto R. Gonzalez v Leroy Carhart, et al. At issue before the Court is whether or not the Partial Birth Abortion Ban Act passed by Congress in October 2003 is constitutional.

On July 8, 2005, the U.S. Court of Appeals for the Eighth Circuit ruled the Act unconstitutional, prompting Attorney General Albert Gonzalez to petition the U.S. Supreme Court to review the Eighth Circuit’s decision. Judicial Watch asks the Court to overrule the Eighth Circuit and uphold the ban.

The brief states, in part:

“Abortion is the most contentious domestic issue today. Indeed, it has been the most contentious domestic social issue for more than thirty years. Roe v Wade did not provide the final word on abortion, rather it served as the starting point for years of legal debate.

“…while there is no determinative moment of viability common to all fetuses, viability is understood to exist by 23 to 24 weeks of gestation…Logically, this means that many, if not most, partial birth abortions are being performed on viable fetuses.

“[The Partial Birth Abortion Act of 2003] represents a legitimate restriction of the qualified right to an abortion because it takes into consideration the liberty interests of both the woman and the partially born baby and properly balances them.”

“Partial birth abortion is a barbaric and indefensible procedure that allows a partially born child to be killed and Congress was right to put an end to it,” said Judicial Watch President Tom Fitton. “Members of Congress clearly crafted the Partial Birth Abortion Ban Act consistent with Supreme Court precedent. The Supreme Court needs to begin to acknowledge the rights of human beings in the beginning stages of life and uphold the ban.”